Earthlink 2013 Annual Report Download - page 146

(either by a specific vote or by approval of the proxy statement of the Employer in which that person is named as a
nominee for director, without objection to that nomination), but excluding, for that purpose, any individual whose initial
assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a1
11 of
the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board of Directors.
(q)
“ On Account of Disability ” shall exist where the Employee’
s Termination of Employment results from
the Employee being “Disabled” as a result of a “Disability”
in accordance with the policies of the Employer or Affiliate
that employed the Employee in effect at the time of the Change in Control of the Employer.
(r)
“ Person ”
means any individual, entity or group within the meaning of Section 13(D)(3) or 14(d)(2) of the
Exchange Act.
(s)
“ Qualifying Position ”
shall mean any one of the following: (1) the Chief Executive Officer or President of
the Employer; (2) the Chief Financial Officer of the Employer and any other officer of the Employer or any Affiliate
who is designated by the Employer through its Board of Directors as an executive officer and being in a Qualifying
Position; (3) the Vice Presidents Classified Jobs of the Employer or any Affiliate; (4) Director Band Jobs of the
Employer or any Affiliate that were banded in the Blue Zone Band and the Chief Executive Officer, President and Chief
Financial Officer of any Affiliate, provided in either case only with respect to an Employee in a Qualifying Position
prior to May 8, 2008 and who received a prior notice of eligibility to participate in the Plan, and (5) any other position or
job classification that the Employer hereafter designates as being a Qualifying Position.
(t)
“ Retirement Plan ”
shall mean any qualified or supplemental employee pension benefit plan, as defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
currently made
available by Employer or an Affiliate in which Employee participates.
(u)
“ Salary ” shall mean the Employee’
s base salary at the greater of the rate in effect on (1) the date the
Change in Control of the Employer occurs or (2) the date of the Employee’
s Termination of Employment under
circumstances described in Section 2(a).
(v)
“ Specified Employee ”
means an employee (as that term is used in Code Section 416) who is (i) an officer
of the Employer having annual compensation greater than $135,000 (with certain adjustments for inflation after 2005),
(ii) a five-percent owner of the Employer or (iii) a one-
percent owner of the Employer having annual compensation
greater than $150,000. For purposes of this Section, no more than 50 employees (or, if lesser, the greater of three or 10
percent of the employees) shall be treated as officers. Employees who (i) normally work less than 17 1/2 hours per week,
(ii) normally work not more than 6 months during any year, (iii) have not attained age 21 or (iv) are included in a unit of
employees covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between
employee representatives and the Employer (except as otherwise provided in regulations issued under the Code) shall be
excluded for purposes of determining the number of officers. For purposes of this Section, the term “five-percent
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